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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: APRIL 15, 2015 SUIT NO. NICN/ABJ/71/2014 BETWEEN Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) - Claimant AND Maritime Workers Union of Nigeria (MWUN) - Defendant REPRESENTATION O. A. Nwachukwu, for the claimant. Rotimi Sanni, and with him is Anthony Atata, for the defendant. JUDGMENT This action is a direct reference to this Court by the Honourable Minister of Labour and Productivity acting pursuant to section 17 of the Trade Disputes Act (TDA) Cap. T8 LFN 2004. The referral instrument is dated 17th March 2014 and was conveyed to this Court vide a letter dated 17th March 2014 with Ref. No. ML.HB/8170/T/20. By the referral instrument, a trade dispute exists between the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN); as such this Court has the following term of reference – To enquire into the trade dispute existing between the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN) over the following point: i. “Unionization of employees of GAC Manning Services on board FPSO Sendje Berge.” Parties, starting with the claimant, were asked by the Court to file and serve their respective affidavit of facts with supporting documents, and to indicate whether witnesses will be led in Court and supporting written addresses. The claimant’s affidavit of facts of 11 paragraphs deposed to by Comrade Chinda Ejims, the Organising Secretary of the claimant union, is dated and filed on 27th June 2014 with supporting documents (Exhibits NUP A to Exhibits NUP J) together with the written address dated 23rd June 2014. The defendant reacted; and its affidavit of facts of 19 paragraphs deposed to by Ganiyu Adio Agoro, the Vice-President, Seamen Branch, of the defendant union, is dated and filed on 10th November 2014 with supporting exhibits together with the written address dated 6th November 2014. The claimant’s reply on points of law is dated and filed on 10th February 2015. Parties did not lead any witness. CLAIMANT’S SUBMISSIONS The case of the claimant is that GAC Manning Services Limited, as a labour contracting company, was retained by BW Offshore a Norwegian oilfield services firm and owner of the Floating Production Storage and Off-loading (FPSO) oil and gas processing and storage facility or vessel known as Sendje Berge and also called in the oil and gas industry Okwori Oil Field Terminal in respect of OML 126/137 an Oil Mining Licence contract granted to and owned by Addax Petroleum Development Company Limited. That before the workers were employed and outsourced by GAC Manning Services they were first interviewed by BW Offshore Management and handed over to GAC Manning Services who as labour contractor to BW Offshore coerced the workers to join the membership of Maritime Workers Union of Nigeria before outsourcing and sending them back to work for BW Offshore on board the said FPSO Sendje Berge. The claimant continued that FPSO Sendje Berge at Okwori Oil Field Terminal is an offshore production facility that houses both processing equipment and storage for produced hydrocarbons and not a maritime business vessel. That on the said outsourced workers becoming aware and conversant of the fact that they are working on board the FPSO Sendje Berge, an oil and gas processing and storage facility in the oil and gas industry, they later collectively resolved and decided against their Management’s decisions, dissociated and withdrew themselves from membership of the Maritime Workers Union of Nigeria imposed on them by GAC Manning Services Limited Management and thereafter applied in writing on 3rd September 2012 to join the membership of NUPENG which they have every reason to believe is the appropriate union that will best protect their interest as junior workers in the oil and gas operation industries. The claimant then framed two issues for the determination of this Court, namely – 1. From the surrounding circumstances and facts of this case as presented by the parties, which of the two unions has jurisdiction under extant laws to unionize the workers or employees of GAC Manning Services on board FPSO Sendje Berge? 2. Whether the act of imposition of membership of a particular by the Management of GAC Manning Services Limited on its said workers/employees against their will is not unlawful and a breach of the workers fundamental rights of freedom of association as provided in the 1999 Constitution of the Federal Republic of Nigeria. Regarding issue 1, the claimant submitted that from the surrounding circumstances and facts of this case as presented by the parties and due consideration of extant laws especially the Trade Unions Act (TUA) Cap. T14 LFN 2004 the claimant herein (NUPENG) is the appropriate union with the requisite jurisdiction of unionizing the said workers or employees of GAC Manning Services on board FPSO Sendje Berge. That by section 54 of the TUA, member of a trade union simply means: “A person normally engaged in a trade or industry which the trade union represents and a person either elected or appointed by a trade union to represent workers’ interest”. It is the claimant’s submission that the workers or employees of GAC Manning Services engaged and outsourced to work on board FPSO Sendje Berge, an oil and gas processing and storage facility in the oil and gas industry owned by BW Offshore (a Norwegian oilfield services firm and being used at Okwori Oil Field Terminal in respect of OML 1261137, an Oil Mining Licence contract granted to and owned by Addax Petroleum Development Company Limited), are persons normally engaged in the industry which the claimant union (NUPENG) represents. The claimant went on that the jurisdictional scope of the defendant as provided for in the Third Schedule, Part B, No. 3 of the TUA is for – All workers in the Nigeria Ports Authority and all persons employed in the manning of ocean going, inland waterways, coastal and harbour vessels or crafts afloat. All dock-workers including workers engaged by shipping, clearing and forwarding agencies, but excluding managerial, professional and administrative staff. It went further to specifically list out the four component unions of the defendant as follows – (1) Dock Workers Union of Nigeria; (2) Nigeria Ports Authority Workers Union; (3) National Union of Seaman and Water Transport Workers; and (4) Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria. To the claimant, there is nowhere it is mentioned that workers on board an FPSO or any other oil and gas facilities or stationary floating vessels used for oil and gas production, processing and storage in the high sea waters working are to be within the jurisdictional scope of the Maritime Workers Union of Nigeria, urging the Court to so hold. To expatiate and throw more light on the fact that workers working on board FPSO are not part of the workers contemplated in item 3, Part B, Third Schedule to the TUA, the claimant submitted that they are obviously not workers in the Nigeria Ports Authority neither are they persons employed in the manning of ocean going, inland waterways, coastal and harbour vessels or crafts afloat. That an FPSO is not an ocean going vessel but rather a stationary floating vessel or facility used in the high sea for oil production, procession and storage. It does not sail and is equipped with Gas Flare Tower. It has under water hoses/pipes from the field Oil Well platform and for these reasons cannot be an inland waterways, coastal and harbour vessel like canoes, boats, ferries, pontoons, barges, or tugboats. That a craft afloat is just floating vessel like boat of smaller size used in travelling. With all this expatiation, the claimant contended that there is no way an FPSO will fit into these categories as to make workers on board it as their workplace to be members of the Maritime Workers Union of Nigeria, urging the Court to so hold. To the claimant, its jurisdiction is as stated in the Third Schedule, Part B, No. 13 of the TUA, which is – Workers in oil well and natural gas well operations including prospecting, drilling, crude oil and natural gas pipelines. Refining, distribution and marketing of natural gas, extraction oil and natural gas and petroleum products including petrol filling stations, petroleum tanker drivers, but excluding the construction of oil and gas pipelines. That “the said workers or employees of GAC Manning on board FPSO Sendje Berge have deposed to the facts that was converted to an FPSO sometime in the year 2000 and that they have been on board the said FPSO Sendje Berge or Okwori Terminal working on the basis of two weeks on board the FPSO and two weeks off the same”. That since all these years of their working on board the said FPSO it has remained floating and stationary at Okwori Terminal for the sole purpose of crude oil production, processing and storage. FPSO Sendje Berge was stationed on Okwori Oil Field in the high sea or ocean by the owners BW Offshore a Norwegian Oil Services Firm to be used by Addax Offshore Nigeria who was awarded a contract and granted an Oil Mining Licence known as OML 126/137 over the Okwori Oil Field for the production, processing and storage of oil from the said Okwori Oil Field hence FPSO Sendje Berge is in the oil and gas industry synonymous with Okwori Oil Field Terminal. To the claimant, it is on record that the FPSO Sendje Berge has an oil processing capacity of 50,000.00 barrels per day and a storage capacity of two million barrels as an oil production, processing and storage facility. These facts are explicitly deposed to in paragraphs 1 to 9 and 15 of the affidavit of facts filed by the claimants herein and Exhibits NUP. A, B, B1 – B4 and I attached in support. The claimant then submitted that the aforesaid exhibits are quite revealing and cannot just be glossed over as they reveal the true status of the FPSO Sendje Berge as an oil and gas production, processing and storage facility in the oil and gas industry. As such that this Court should hold that GAC Manning Services employees or workers outsourced or sent to work on board the same are workers in oil well and natural gas well operations and are within the area of jurisdiction of the claimant union NUPENG. The claimant also submitted that from the provisions of sections 54 and the Third Schedule, Part B, Nos. 3 and 13 of the TUA, it is the worker’s trade, industry or workplace that is to be used to determine which union he ought to join or belong and not what the employer of the worker allegedly claimed to be his trade or business. The claimant accordingly contended that it is not for GAC Manning Services to say that it is not in the business of oil well and natural gas well operations, which could be true, but in so far as her workers or employees are outsourced and sent to work on board BW Offshore’s FPSO Sendje Berge being used on agreement by Addax Offshore Nigeria to execute her Oil Mining Licence contract over Okwori Oil Field Terminal for the purpose of producing, processing and storing oil and gas then it ordinarily follows that those employees or workers workplace cannot be said to be in the maritime industry but oil and gas industry within the jurisdictional scope of the claimant union on record, urging the Court to so hold and to place strong reliance on the paragraphs of the claimant’s affidavit of facts and the exhibits attached thereto especially the observations and decisions of the 13-man Committee Report captured in Exhibit NUP I to resolve issue 1 in favour of the claimant union. On issue 2 i.e. whether the act of imposition of membership by the Management of GAC Manning Services Limited on its said workers/employees against their will is not unlawful and a breach of the workers fundamental rights of freedom of association as provided in the 1999 Constitution of the Federal Republic of Nigeria, the claimant submitted that it is a trite principle of labour law that an employer cannot impose membership of any trade union whatsoever on the workers/employees. That the Labour Act in section 9 makes it null and void anything done by an employer suggesting that a worker should join or not join a particular trade union. The right is exclusively that of the worker and not that of the employer. The claimant then submitted that it is completely wrong and unlawful for the Management of GAC Manning Services Limited to coerce its employees to join membership of the Maritime Workers Union of Nigeria, urging the Court to so hold. The claimant also submitted that the act of imposition of membership of a particular trade union on the workers by the said Management is a serious breach of the workers’ rights of freedom of association to join a trade union of their choice that will protect their interest as guaranteed under section 40 of the 1999 Constitution. More so, that each junior worker is deemed by law to be member of the relevant trade union until he or she in writing opts out. While senior workers are deemed not to be members until they opt in writing. That the claimant has shown that by Exhibit NUP C the said workers of GAC Manning Services Limited voluntarily applied requesting to join membership of the claimant union. That the claimant has also proved that by Exhibit NUP D the said workers had in writing opted out of the membership of the Maritime Workers Union of Nigeria that was imposed on them by the Management of GAC Manning Services Limited. The claimant referred the Court to its decision in the case of Nestoil Plc v. NUPENG (unreported judgment of the Lagos Judicial Division of 8th March 2012 at pages 26 to 28) and urged the Court to hold that the actions of the said workers of GAC Manning Services Limited working on board FPSO Sendje Berge at Okwori Oil Field Terminal in opting out of Maritime Workers Union of Nigeria (MWUN) and voluntarily joining NUPENG, which union under the law has jurisdiction of unionization of all junior workers in the oil and gas industry, is proper and in accordance with the said workers’ legal and constitutional rights thus resolving issue 2 in favour of the claimant union. In view of all the foregoing, the claimant urged the Court to find and enter judgment in its favour. DEFENDANT’S SUBMISSIONS The defendant in reaction simply rephrased the two issues framed by the claimant in the following words – 1. Which of the parties to this suit i.e. the Nigerian Union of Petroleum & Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN) has jurisdiction to unionize the employees of GAC Manning Services (Nig) Limited? 2. Can workers elect to join unions contrary to the provisions of the Trade Unions Act Cap. T14 Laws of the Federation of Nigeria, Vol. 15 particularly the provisions of its Third Schedule, Part B? Regarding issue 1, the defendant first drew the Court’s attention to the fact that the employees in issue in this matter are those of GAC Manning Services (Nig) Limited who are crew supplied to man the vessel, FPSO “Sendje Berge”. That this is in line with the main object of GAC Manning Services (Nig) Limited as spelt out in Exhibit “MWUN 1” and “MWUN 2”. And although the FPSO Sendje Berge is chartered out by BW Offshore to Addax/Sinopec, none of the workers involved in this matter are employees of either companies. The employees remain those of GAC Manning Services (Nig) Limited recruited with the approval of NIMASA and in line with the relevant provisions of the NIMASA Act and Cabotage Act, referring to Part IV, sections 22(1) and 27 of the Nigerian Maritime Administration and Safety Agency Act 2007 and section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003. That section 2 of the Cabotage Act 2003 defines “place above Nigerian waters” to include a vessel such as Sendje Berge and, therefore, brings Sendje Berge within the provisions of the Cabotage Act. That the workers are recruited as crew members to man the vessel Sendje Berge. Sendje Berge is manned by a crew because it is essentially a marine equipment. Hardly any sane person will feel safe to remain on board of an FPSO unless it is manned by qualified seamen who are trained to operate the equipment and ensure safety of the equipment and everybody on board. The defendant continued that GAC Manning Services (Nig) Limited is a subsidiary of GAC Shipping (Nig) Limited, the Nigerian arm of the global shipping agency company GAC Limited. GAC Manning Services (Nig) Limited’s object and its main activities is to supply crew to vessels of all kinds operating in and above Nigerian waters, including crew manning vessels operating in the oil and gas industry. To carry out those activities it is registered with and has the approval of the Nigerian Maritime Administration and Safety Agency (NIMASA) as a manning agent in compliance with the provisions of the Nigerian Maritime Administration and Safety Agency Act 2007, the Coastal and Inland Shipping (Cabotage) Act 2003 and other relevant extant laws. To the defendant, the Vessel, “Sendje Berge”, a Floating Production, Storage and Offloading (FPSO) barge is owned by the Norwegian company BW Offshore. It works in and around Okwori, about 24 nautical miles from Port-Harcourt, Nigeria for Addax/Sinopec in their Okwori Oil field Terminal. That the crew supplied to BW Offshore to man its FPSO by GAC Manning Services (Nig) Limited were recruited from a register of dockworkers, seafarers, stevedores, etc. kept and maintained by NIMASA in line with the provisions of section 27 of the NIMASA Act 2007. Importantly, that they were recruited as and remain employees of GAC Manning Services (Nig) Limited. That as defined by the Cabotage Law Sendje Berge falls within the category of “place above Nigerian waters” and within Nigerian waters, referring to section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003. The defendant went on that it was the union organising for the purposes of collective bargaining the employees of GAC Manning Services (Nig) Limited supplied as crew to man the Sendje Barge. It also collects their check-off dues. That all of this is confirmed by facts deposed to by the parties and are not in dispute. Then, beginning from the year 2012, the claimant with characteristic tendency for expansionism and backed by the almighty Ministry of Petroleum Resources woke up to the realization that Sendje Berge after all is operating in the Oil and Gas Industry and since, in its view, all and every work-force operating in the Oil and Gas Industry must be organised by it alone, the defendant has to be stopped from continuing to unionize the employees of GAC Manning Services (Nig) Limited working on board the FPSO Sendje Berge. That the Ministry of Petroleum Resources decided to play favouritism and, acting ultra vires, put together a kangaroo 13-man committee it named “Committee on the Resolution of Industry Relation Issues in the Oil and Gas Industry”. Its action was suspect not only because the committee failed to observe the rule of fair-hearing, but also because it was an attempt to usurp a duty rightly belonging to the Ministry of Labour and Productivity. It actually did worse, as deposed to by the defendant union. It mounted pressures on GAC Manning Services (Nig) Limited to bring about this belligerency by replacing the defendant union with the claimant union. That this suit is accordingly timely to resolve the dispute in issue. To the defendant, section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003 defining “Coastal Trade or Cabotage” defines “place above Nigerian Waters in the context of Coastal Trade” as including any vessel, offshore drilling unit, production platform, artificial island, sub-sea installation, pumping station, living accommodation, storage structure, loading or loading platform, dredge, floating crane, pipe laying or other barge or pipeline and any anchor cable or rig pad used in connection therewith. That this definition is broad enough to include Sendje Berge. By virtue of this, the Cabotage Act applies. That this brings Sendje Berge within the power of NIMASA by virtue of the provisions of section 22(1)(j) of the Nigerian Maritime Administration and Safety Act 2007. The defendant went on that the Nigerian Maritime Administration and Safety Agency Act 2007 in section 27, Part VII forbids a person who is not a registered dock worker or seafarer from engaging in the performance of dock work in any port, terminal or offshore platforms or terminals in Nigeria or on board any Nigerian vessel. This remains the law, changes in nomenclature notwithstanding. It is by virtue of this provision that GAC Manning Services (Nig) Limited was appointed by NIMASA as manning agents. That is, GAC Manning Services (Nig) Limited owes its authority to recruit or employ and deploy to NIMASA rather than BW Offshore as the claimant seeks here to portray. On issue 2 i.e. whether workers can elect to join a union contrary to the provisions of the Trade Unions Act particularly the provisions of Part B of the Third Schedule, the defendant contended that the purported switching of unions by the employees of GAC Manning Services (Nig) Limited is what has come to be known as “volunteerism” in common legal parlance. That the law prescribes categorization for Nigerian workers who desire to belong to a union. The effect of the provisions of the law is that if a worker desires to belong to a union at all he has to belong as prescribed by the law. He cannot pick and choose a union according to his whim and caprices or by responding to an inducement by a union or anybody else be it Ministry of Petroleum Resources or otherwise. That this is the clear provisions of Part B of the Third Schedule to the Trade Unions Act. In support of this submission, the Court was referred to its decisions in PERESSA v. SSACGOC [2009] 14 NWLR (Pt. 39) 345 – wrong citation, NCSU v. ASCSN [2004] 1 NWLR (Pt. 3) 429 – wrong citation, Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755 and NMNO/WTSSA & anor v. NUPENG & anor Suit No. NIC/ABJ/104/2011 – incomplete citation. To the defendant, the Federal Ministry of Petroleum Resources acted ultra vires when it dabbled into issues of labour and inter-union relationship and tried to prescribe the rightful union to organise workers in an organisation such as GAC Manning Services (Nig) Limited. This is an area exclusively reserved for the Ministry of Labour and Productivity. That it purported to set up a 13-man committee on “the Resolution of Industrial Relation Issues in the Oil and Gas Industry”. The Technical Subcommittee in its report Reference No. MPS/2073/Vol.VII/15 dated 3rd December 2013 marked Exhibit “NUP1” in the claimant’s affidavit of facts and signed by one Goddy E. Onwughalu, Director, Human Resources, disclosed the parties they met with. It did not include the defendant thus rendering the report one-sided. That the only useful purpose this report serves is to show clearly how the Federal Ministry of Petroleum Resources has been acting as interloper of sort. In conclusion, the defendant urged the Court to rule in its favour. CLAIMANT’S REPLY ON POINTS OF LAW The claimant reacted by filing a reply on points of law. To the claimant, the defendant in paragraph 5 of the affidavit of facts it filed admitted that one of the businesses of GAC Manning Services (Nig.) Limited is labour recruitment. That this confirmed the facts deposed to by the claimant in paragraph 3(i) of the claimant’s affidavit of facts. That the defendant also admitted in paragraphs 5 and 6 of her affidavit of facts that Sendje Berge is a Floating, Production, Storage and Offloading (FPSO) vessel belonging to BW Offshore operating in Okwori and that the workers in question are working on the FPSO Sendje Berge which admission confirmed the depositions of the claimant contained in paragraphs 2, 3(i) – (viii) of the claimant’s affidavit of facts. That it is trite law that facts admitted need no further proof, referring to Nigerian Bottling Company Plc v. Ubani [2014] All FWLR (Pt. 718) 803 at 810 where the Supreme Court held that what is admitted needs no proof as the evidence has gone one way. The claimant went on that the defendant never in her affidavit of facts denied that the FPSO Sendje Berge is an oil and gas industry facility used by the oil and gas companies, BW Offshore and Addax, for the sole purpose of oil and gas production, storage and offloading at Okwori Oil Field Terminal in respect of an oil mining lease (OML) 126/137. That the defendant never denied the claimant’s depositions to the fact that FPSO Sendje Berge is positioned permanently at Okwori Oil Field Terminal in the oil and gas industry and that it has an oil processing capacity of 50,000.00 barrels per day and a storage capacity of two million barrels. That it is further trite in law that material facts not specifically denied are deemed admitted, referring to Wheels & Brakes Ltd v. Odo [2014] All FWLR (Pt. 717) 773 at 776 where the Court of Appeal held that the legal consequences of failure to controvert averments in affidavit is that facts not denied in an affidavit by a counter-affidavit (which in this case is the defendant’s affidavit of facts) are deemed admitted, urging the Court to hold that the defendant has in law admitted the said facts deposed to in the claimant’s affidavit of facts. The claimant also contended that there is no place in the defendant’s affidavit of facts where it deposed to the facts that FPSO Sendje Berge is a maritime vessel. That the defendant only stated in paragraphs 5 and 9 of its affidavit of facts that it recruits and supplies crew (workers) to vessels located and operating in the marine industry of Nigeria. The claimant then submitted that there is nothing like marine industry contemplated within the provisions of the Third Schedule, Part B, item No. 3 of the Trade Unions Act. That it is the maritime industry that is contemplated. That marine (Nigerian Waters) like land is a vase business environment. That business activities of the maritime industry and oil and gas industry are respectively carried out in the marine environment hence an FPSO is a vessel specially constructed for the oil and gas companies to conveniently use for their oil and gas industry activities in the marine environment or Nigerian Waters. That there is also no place in the defendant’s affidavit of facts where it deposed to the fact that the said workers on board the said FPSO Sendje Berge are seaman or seafarer and or dock workers that are rendering maritime or marine support services on board the said vessel which had long been converted and rated oil and gas production facility. That it is the law that a counsel’s submission, no matter how brilliant, cannot take the place of evidence, referring to Ajayi v. Total Nig. Plc [2014] All FWLR (Pt. 719) 1069 at 1072 and urging the Court to disregard the defendant’s counsel submissions expressed in paragraph 4.2 of his written address where he stated thus: “Hardly any sane person will feel safe to remain on board of an FPSO unless it is manned by qualified seamen who are trained to operate the equipment and ensure safety of the equipment and everybody on board”. The claimant went on that the defendant in paragraph 10 of its affidavit of facts stated that crew supplied to BW Offshore to work on the FPSO SENDJE BERGE are registered with, and approved by NIMASA but did not show any evidence of such registration and approval. It is trite law of evidence that he who asserts must prove. That assuming without conceding that they were so registered, then the notion held by the defendant’s counsel must be misconceived and misleading as registration of workers with, and securing approval from NIMASA for workers working on board any oil and gas facilities like FPSOs, FSOs, offshore drilling units, production platforms, sub-sea installations, pumping stations, storage structures, etc in a place above Nigerian Waters as provided for under section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003 have nothing to do with the determination of which trade union has jurisdiction over such workers. That it is the Third Schedule, Part B of the Trade Unions Act that provides for the jurisdictional scope of the trade unions and it did not in its clause 9 or any other place state that membership of the claimant union is limited to workers in oil well and gas well operations, etc on land facilities installations alone. Neither did it exclude workers in oil well and gas well operations, etc located in the marine environment or offshore facilities installations. In the same vein, that there is no place in clause 3 of the same Third Schedule, Part B of the Trade Unions Act where it is stated that workers on FPSOs, FSOs, offshore drilling units, production platforms, sub-sea installations, pumping stations, storage structures, etc in a place above Nigerian Waters are within jurisdictional scope of the defendant union. In fact, that these offshore oil and gas industry facilities are not listed in clause 3 for the obvious reasons that they are covered under clause 9, praying the Court to so hold and find that the Coastal and Inland Shipping (Cabotage) Act 2003 and the NIMASA Act are not the parameters for determining the trade union to which workers have constitutional right to join just because their workplace is offshore or in a place above Nigeria. The claimant also urged the Court to take judicial notice of the fact that most of our country oil and gas exploration and or operations are done offshore and on facilities above Nigerian waters. The claimant further contended that such registration and approval from NIMASA even where there is evidence that it was done, cannot, just for that fact, make oil and gas industry workers working on board oil and gas industry facilities like FPSOs, FSOs, offshore drilling units, production platforms, sub-sea installations, pumping stations, storage structures, etc in a place above Nigerian Waters or offshore Nigerian waters members of the defendant union. Likewise, that the registration with and obtaining of DPR permits from the office of Department of Petroleum Resources (DPR) by a maritime company or say any offshore catering services company before venturing into the restricted sea areas of oil and gas industry operations to render solely maritime or catering services as the case may be cannot just for that purpose make those workers sent to render maritime or catering supply services to the oil and gas industry offshore facilities workers in the oil and gas industry without more. The claimant then reiterated that FPSO Sendje Berge is the workplace/industry where the said workers of GAC Manning are working and there is nothing placed before this Court by the defendant to show that they are seamen or seafarers and not oil and gas industry workers. The defendant’s counsel had also stated in paragraph 4.13. of his written address that the Nigerian Maritime Administration and Safety Agency Act 2007 in section 27, Part VII forbids a person who is not a registered dock worker or seafarer from engaging in the performance of dock work in any port, terminal, or offshore platforms or terminals in Nigeria or on board any Nigeria vessel. To the claimant, the operating key words from the above law is: engaging in the performance of dock work. Put differently, it means that it is only registered dock workers or seafarers that can do dock work on board offshore platforms and terminals like the FPSO SENDGE BERGE (emphasis is the claimant’s). The claimant then repeated its earlier submission that there is no shred of evidence in the affidavit of facts of the defendant that the said workers on board FPSO Sendje Berge are dock workers or seafarers, that they are registered with NIMASA as such. The claimant submitted that the ipse dixit of one Ganiyu Adio Agoro, who is neither a Director nor an employee of GAC Manning Services (Nig.) Limited, in paragraph 10 of the defendant’s affidavit of facts is not enough proof in law. That there was no iota of evidence too showing that they were engaged in the performance of dock work and not oil and gas industry work while on board the said FPSO from the same affidavit of facts of the defendant. Thus, that the defendant left this Court to speculate on those issues as no evidence was adduced by it to buttress those points. The claimant went on to submit that a Court of law does not speculate but acts on the strength of materials and evidence before it, referring to Olasope v. Babatayo [2005] All FWLR (Pt. 272) 339 at 343. That the same cannot, however, be said of the affidavit of facts of the claimant, referring to especially paragraphs 3(iii), 8 and 9 of the said claimant’s affidavit of facts where it deposed to the facts that the said workers of GAC Manning Services on board the FPSO Sendje Berge at Okwori Oil Field Terminal are there doing their work as workers working in oil and gas industry installations. That the defendant did not deny, challenge or controvert these depositions of facts in claimant’s affidavit of facts, urging the Court to deem them admitted and rely upon them. The Court was referred to Adebiyi v. Umar [2013] All FWLR (Pt. 683) 2000 at 2004. The claimant submitted that the said workers are not dock workers or seafarers, they are not workers engaged to do dock work on the FPSO and they are not registered with NIMASA either as dock workers or seafarers, urging the Court to so hold in the absence of concrete evidence. To the claimant, the defendant made so much unsubstantiated allegations and insinuations over the letter dated 3rd December 2013 from Ministry of Petroleum Resources to the Managing Director of GAC Manning attached to the claimant’s affidavit of facts as Exhibit NUP I in its frantic effort to generate the sentiment and sympathy of this Court to gloss over the material facts of the true nature and status of the FPSO as stated in the said Exhibit NUP I. The claimant then submitted that sentiment has no place in our law. That before this dispute was referred to this Court for adjudication, it went through the processes of mediation and conciliation as could be gleaned from the Government Notice or Instrument dated 17th March 2014 from the office of the Honourable Minister of Labour and Productivity to this Court. The claimant referred to the records of this Court. That it is apparent on the face of the said Exhibit NUP I that the said 13-man Committee was set up by the Federal Government, not Ministry of Petroleum Resources, in the course of conciliation to resolve the issues in the dispute and they came up with the observations and findings communicated therein. That the said 13-man Committee cut across board inclusive of NIMASA representatives. The claimant also contended that the Ministry of Petroleum Resources is better informed and positioned to categorize an FPSO and the status of the workers working thereon. The claimant, therefore, urged the Court to discountenance the baseless and unsubstantiated allegations contained in paragraphs 12 to 15 of the defendant’s affidavit of facts and submission of the defendant’s counsel in paragraphs 5.1 to 5.4 of his written address and make good use of the said document and other documents exhibited in this matter by the claimant and find in favour of the claimant. Finally, the claimant reminded the Court that the referral from the office of the Honourable Minister of Labour and Productivity to this Court is specific in nature as to the workers of GAC Manning Services under reference: To enquire into the trade dispute existing between the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN) over the following point: i. Unionization of employees of GAC Manning Services on board FPSO Sendje Berge. That this is an indicator or acknowledgement of the fact that there are other GAC Manning Services workers recruited and supplied to work at other places/industries. That the defendant’s counsel issue 1 is on which of the parties to this suit has jurisdiction to unionize the employees of GAG Manning Services (Nig.) Limited. To the claimant, the referral to this Court is in respect of employees of GAC Manning Services on board FPSO Sendje Berge and the claimant’s interest is specifically on those workers recruited by GAC Manning Services (Nig.) Limited and supplied to work on board FPSO Sendje Berge. That those are the only workers/employees of GAC Manning Services (Nig.) Limited that were unionized by the claimant because they are working on board FPSO Sendje Berge, an oil and gas production, processing and storage facility in the oil and gas industry for BW Offshore, a Norwegian oilfield services firm owner of the said FPSO and for Addax Petroleum Development Company Limited owner of the Oil Mining Lease (OML) 126/137 at Okwori Oil Field Terminal. In conclusion, the claimant urged the Court to find and enter judgment in its favour. COURT’S DECISION I heard learned counsel and considered all the processes filed in this matter. In considering the merits of the case, I need to clarify a number of issues stemming from the submissions of the parties. For one, it is elementary knowledge that in referral of cases to either this Court or the Industrial Arbitration Panel (IAP) by the Honourable Minister of Labour and Productivity acting pursuant to his powers under Part I of the TDA, the jurisdiction of either this Court or the IAP, as the case may be, is delimited by the referral instrument itself. Neither this Court nor the IAP can go outside or beyond the scope of the items listed in the referral instrument for adjudication or arbitration. The referral instrument to this Court is quite specific in asking this Court to enquire into the trade dispute between the parties herein as to the “unionization of employees of GAC Manning Services on board FPSO Sendje Berge”. So when the defendant framed issue 1 as, “which of the parties to this suit i.e. the Nigerian Union of Petroleum & Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN) has jurisdiction to unionize the employees of GAC Manning Services (Nig) Limited?”, the defendant thereby went beyond the pale. The referral instrument restricts this Court to only determine who between the two trade unions has jurisdictional scope over “employees of GAC Manning Services on board FPSO Sendje Berge” (emphasis is the Court’s), not over all employees of GAC Manning Services. I accordingly agree with the claimant’s submission in that regard. The second relates to the affidavits of facts of both parties; in particular paragraph 10 of the claimant’s affidavit of facts and paragraphs 7, 8, 14, 15, 16, 17 and 18 of that of the defendant. All of these paragraphs offend section 115(2) of the Evidence Act 2011 given that they “contain extraneous matter, by way of objection, prayer or legal argument or conclusion”. For this reason, the offending paragraphs of both affidavits of facts are hereby struck out in accordance with the test laid down in AG, Adamawa State & ors v. AG, Federation & ors [2005] 18 NWLR (Pt. 958) 581 at 625 and 657 – 658 to the effect that where depositions in an affidavit offend the basic law, the offending paragraphs of such an affidavit must be struck out. Thirdly, the defendant had argued in paragraph 5.3 of its written address that the Federal Ministry of Petroleum Resources acted ultra vires when it dabbled into issues of labour and inter-union relationship and tried to prescribe the rightful union to organise workers in an organisation such as GAC Manning Services (Nig) Limited when this is an area exclusively reserved for the Ministry of Labour and Productivity. The defendant may be partially right in asserting that issues of labour are best suited to be resolved by the Ministry of Labour, but it must note that in The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor unreported Suit No. NIC/ABJ/104/2011 the judgment of which was delivered on February 8, 2013, a case the defendant even referred the Court to, this Court held that “…the question of jurisdictional scope of trade unions is a question of law which only an appropriate court of law can decide, not the Minister of Labour, Employment and Productivity…”. So even in relation to the Minister of Labour and Productivity, it does not lie with the Honourable Minister “to prescribe the rightful union to organise workers in an organisation such as GAC Manning Services (Nig) Limited” as the defendant in the instant case seems to think. It is even surprising that the defendant would raise an argument such as this. The defendant had argued that the Federal Ministry of Petroleum Resources acted ultra vires when it dabbled into the issue of labour and inter-union relationship and tried to prescribe the rightful union to organize workers in an organization such as GAC Manning Services (Nig.) Ltd, yet the same defendant is relying on NIMASA, its enabling Act and the Cabotage Act as the basis for its submissions that the workers in issue should appropriately be unionized by MWUN? Here, I agree with the claimant that it is the TUA (not any other law) that determines the question of unionization. When The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor was decided by this Court, copious references were made to both the NIMASA Act and the Cabotage Act by the present defendant, which was the 2nd defendant in that case. The matter was resolved by this Court by considering only the TUA, case law and the evidence before the Court, not by reference to the NIMASA and Cabotage Acts. The same shall be the case in regards to the instant suit. Fourthly, when the claimant argued that the defendant had admitted facts deposed to in the claimant’s affidavit of facts, the claimant seems to assume that thereby the defendant impliedly acceded to the claimant’s claim for jurisdictional mandate over workers of GAC Manning Services on board the FPSO Sendje Berge. In this vein, there is the misconception or wrong assumption that parties can agree to jurisdictional scope. The question whether a union has the jurisdictional scope to unionise a certain category of workers, just like the question whether a worker is a member of a trade union, is a question of law not susceptible to the vagaries of the rules of pleadings as pertains to admission. Parties cannot just by admission agree to which union should unionise certain workers. Once what is agreed to does not conform with what the TUA lays down, such an admission cannot see the light of day. On whether membership of a trade union can be bestowed by pleadings, in Aghata N. Onuorah v. Access Bank Plc unreported Suit No. NICN/ABJ/30/2011 the judgment of which was delivered on December 15, 2014, this is what this Court said – As a senior staff, the law is (and the defendant cited a number of authorities in that regard) that the employee is not assumed to be a member of the trade union. He/she has to “opt in”, individually and in writing (unlike junior staff who are deemed members and so can only “opt out”; for here, deduction of check-off dues is not based on membership but on eligibility – see Udoh v. OHMB [1990] 4 NWLR (Pt. 142) 52). The claimant in the instant case is a senior staff. She must show membership of ASSBIFI in order to benefit from Exhibit E, the collective agreement. That the defendant made payments to her on the basis of Exhibit E does not mean that thereby she automatically became a member of ASSBIFI as to be entitled to have the benefits from Exhibit E enforced by this Court. She still has to show membership of ASSBIFI in order to be so entitled. In other words, payment under a collective agreement to one who is not a member of the trade union which signed the collective agreement does not and cannot thereby (and by that fact alone) legitimize the non-member as one who can benefit or enforce a benefit from the collective agreement. In fact, where the person in question does not show evidence of membership of the trade union in question, that the fact of unionism is pleaded and not denied is not sufficient to clothe the toga of membership of the trade union and hence entitlement to benefits from the collective agreement entered into by the trade union. In other words, a deemed admission or even a direct admission itself in pleadings does not and cannot confer membership of a trade union. This is because the party making or being deemed to make the admission is not competent to and so cannot bequeath membership of a trade union on an employee. The issue whether or not an employee is a member of a trade union is essentially one of law given the current state of our trade union law; and so it cannot simply, without more, be bestowed by a third party such as the defendant in this suit. The issue here is that for non-members of a trade union, the collective agreement in question is not enforceable against them. As such, a party or parties in a suit cannot by admission make enforceable that which is unenforceable ab initio. In the eyes of the law a non-member cannot enforce to his benefit a collective agreement entered into by a trade union that he is not a member of; neither can he have it enforced against him. Even an admission by a defendant as the claimant argues in the instant case cannot thereby give legitimacy to a non-member. Actual proof of membership is the key to recovery under a collective agreement. Proof of that membership of a trade union has to be by direct documentary evidence. It is in this sense that Habu v. NUT Taraba State must be understood when it held that the deduction of check-off dues from salaries and wages of a worker and the remittance of same to a trade union is an incidence of membership of the worker. Even at this, the worker must by direct documentary evidence prove that such deduction of check-off dues and remittance of same to the trade union was done if his fact of membership of the trade union is to be held as established by a Court of law. The impression accordingly given by the claimant that the defendant must be read to have admitted the facts deposed to in the claimant’s affidavit of facts and as such the claimant is rightfully the union to unionise the “employees of GAC Manning Services on board FPSO Sendje Berge” is erroneous without more. I must reiterate once again that parties cannot by mere admissions in pleadings bestow jurisdictional scope on trade unions. The question of jurisdictional scope of trade unions is one of law answerable only by the TUA as applicable to the facts proved before the Court. I now turn to the merit of the case; and here I will first address the claimant’s issue 2, which is actually an ancillary issue in terms of the issue referred to this Court in the referral instrument. As issue 2, the claimant had posed thus: “whether the act of imposition of membership of a particular by the Management of GAC Manning Services Limited on its said workers/employees against their will is not unlawful and a breach of the workers fundamental rights of freedom of association as provided in the 1999 Constitution of the Federal Republic of Nigeria”. In paragraphs 3(ix) and (x), 4 and 5 of the claimant’s affidavit of facts, the claimant had narrated facts detailing the imposition by GAC Manning Services Ltd on its employees to join the MWUN as against NUPENG. That the said employees resisted and instead opted for NEPENG as can be seen from Exhibits C, D and E. From paragraph 3 of the affidavit of facts of the claimant, it will be seen that the claimant union claims unionization rights over the “junior workers of GAC Manning Services Ltd working on board the Floating Production Storage and Off-loading (FPSO) Oil and gas vessel Sendje Berge…” In other words, the workers in contention are junior staff. Now the law regarding unionization was succinctly put thus by this Court in Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 – …As far as our law is concerned, junior staff are deemed to be members of a union until they individually and in writing opt not to be; while senior staff are deemed not to be members until they individually and in writing opt to be. This means that if in truth the defendant is the proper union to unionize junior staff of the defendant, the question of them having to agree and express their interest before they can join the defendant’s union will not arise. All that will be required of them is that if they do not want to be members, they can opt out. See generally the cases of CAC v. AUPCTRE [2004] 1 NLLR (Pt. ) 1, Mix & Bake v. NUFBTE 2004 1 NLLR (Pt. 2) 247, TIB Plc v. NUBIFIE [2008] 10, NLLR (Pt. 27) 322 and Mgt. of Tuyil Nig. Ltd v. NULFRIL & NMPE [2009] 14 NLLR (Pt. 37) 109, which establish that the law is that registration is deemed, recognition automatic and deduction of check-off dues compulsory, being based on mere eligibility to be a member of the union in question…. See also National Union of Shop and Distributive Employees (NUSDE) v. The Steel and Engineering Workers Union of Nigeria (SEWUN) [2013] 35 NLLR (Pt. 106) 606 NIC. From this, the law is that for junior workers, membership of a trade union is based on eligibility. Junior workers are deemed to be members of their relevant trade unions and can only opt out (the principle of ‘opting out’). In other words, junior workers cannot opt in or opt for a trade union; they can only opt out. So when the claimant frontloaded Exhibit C (a letter dated 3rd September 2012 and addressed to the Chairman/Secretary of NUPENG, Port Harcourt Zone) indicating that the under-listed and undersigned wish to write and wish to join NUPENG, this is certainly not in conformity with the law for the simple fact that in law, junior workers cannot opt into any trade union; and I so hold. Secondly, even if they could, this must be done individually and in writing. These are not alternative requirements – they must both be met. In other words, each worker must write separately from the other and sign separately as individuals. Exhibit C does not meet this requirement given that it was supposedly signed by the 23 named persons in the attached sheet of paper; and I so find and hold. See NUSDE v. SEWUN where this Court held as ineffective proof of resignation of union membership of SEWUN a letter which stated that, as indicated by their signatures, the entire workers of a company declare voluntarily their membership of NUSDE and authorization that 3% be each deducted from their wages every month as union dues and paid to NUSDE. This Court then went on to categorical state the law in the follows words – And in Habu v. NUT, Taraba State [2005] 4 FWLR (Pt. 283) 646, it was held that where a plaintiff contracted out of the check-off dues system, it is for the trial Court to determine whether thereby the plaintiff can be forced or compelled to continue to be a member of the trade union he is contracting out from and whether the continuation of the deduction of check-off dues from his salaries and wages cannot be stopped. The question is whether the workers in the instant case can be said to have resigned their membership of SEWUN. The law is that workers who are members of a union and who are desirous of resigning their membership of that union can only resign individually and in writing. These two requirements must be met separately if the resignation is to be effective. The so-called declaration of membership for NUSDE, which the letter of 1st April 2005 signifies does not meet the first requirement of individual resignation. Collective resignation is not permitted and so is invalid. What all of this means is that there being no effective resignation of the workers from SEWUN, they remain bona fide members of SEWUN. This means that the check-off dues which the IAP found to be held in a suspense account must be released forthwith by the seven companies named in the terms of reference to SEWUN… In like manner, Exhibit E, an email written on behalf of all aggrieved workers suffers the same setback of not being for an individual but for Sendje Berge Crew (officers and ratings); and I so find and hold. See also The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor unreported Suit No. NIC/ABJ/104/2011 the judgment of which was delivered on February 8, 2013. Exhibit D is a collection of individual letters which meets the requirements of the law but does not indicate who it is addressed to. For this reason, it lacks probative value and so cannot evidence the desire of the signatory to disengage from the membership of the either Nigeria Merchant Navy Officers Union (NMNOU) or MWUN. In any event, in those of the letters in Exhibit D where the signatories opted out of the Nigeria Merchant Navy Officers Union (NMNOU), it should be noted that the NMNOU, being a union for officers, is the senior staff counterpart of the National Union of Seamen and Water Transport Workers, the union for junior staff. So if those who signed Exhibit D are opting out of the Nigeria Merchant Navy Officers Union (NMNOU), a senior staff union, they cannot be opting for NUPENG, a junior staff union. In this sense, Exhibit D authenticates nothing. Either way it is seen, Exhibit D has no legal consequence and so lacks validity; and I so find and hold. So when NUPENG wrote to the General Manager of GAC-GMS Nig. Ltd vide Exhibit G dated 15th October 2012 informing him of the formation of a branch of NUPENG “after the workers voluntarily applied to join the union in accordance with the Trade Unions Act 2005”, this was most certainly wrong, illegal, null and void and of no effect whatsoever. Junior workers cannot on their own opt for a union; and senior staff can only opt for a senior staff union. NUPENG is a junior staff union and so junior staff cannot opt for it – they can only be deemed to be members under the TUA; neither can senior staff opt for it since NUPENG is not a senior staff union. So NUPENG cannot form a branch union because workers voluntarily applied to join it. On this score, the said existence of NUPENG in GAC-GMS Nig. Ltd is illegal, null and void and of no effect whatsoever; and I so find and hold. I, however, agree with the claimant that an employer cannot compel its workers to join any union. This Court has pointedly and in countless cases held so. See also Sea Trucks Ltd v. Pyne [1995] 16 NWLR (Pt. 400) 166; [1999] 6 NWLR (Pt. 607) 514. Other than the averments of the claimant in its affidavit of facts to the effect that GAC Manning Services Ltd imposed union membership of MWUN on its employees, there is no other evidence indicating that this is actually the case. So regarding the claimant’s issue 1, my holding is that while an employer has no right to dictate to an employee the union to join, the formation of a branch union by NUPENG in GAC-GMS Nig. Ltd is illegal, null and void and of no effect whatsoever; and on that score, the said branch union must forthwith cease all operations in GAC-GMS Nig. Ltd. I now turn to the claimant’s issue 2; and here I need to remark that in previous cases, this Court had had the opportunity to pronounce of the jurisdictional scope the parties in the instant suit. Two of such cases come to mind and are: The National Union of Petroleum and Natural Gas Workers v. Maritime Workers’ Union of Nigeria [2012] 28 NLLR (Pt. 80) 309 NIC and The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor unreported Suit No. NIC/ABJ/104/2011 the judgment of which was delivered on February 8, 2013. Both cases dealt with the issue of unionization of outsourced workers as between NUPENG and MWUN. More related to the instant suit, however, is The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor. Before this case, NUPENG v. MWUN [2012] 28 NLLR (Pt. 80) 309 had held that – …dock workers come within the jurisdictional scope of the respondent, Maritime Workers Union of Nigeria. The labour supplied by Polmaz Nig. Ltd to Chevron Nig. Ltd consist dock workers who belong to the Maritime Industry. The type of work done and the industry is the yardstick for determining jurisdictional scope (emphasis is the Court’s). In the instant case, the issue for determination is which union between NUPENG and MWUN has the unionization right over the “employees of GAC Manning Services on board FPSO Sendje Berge”. In order to determine this issue, it may be necessary to ascertain what FPSO Sendje Berge actually is. The defendant had argued that FPSO Sendje Berge is manned by a crew because it is essentially a marine equipment. In answer, the claimant contended that there is no place in the defendant’s affidavit of facts where it deposed to the facts that FPSO Sendje Berge is a maritime vessel. That there is no shred of evidence in the affidavit of facts of the defendant that the said workers on board FPSO Sendje Berge are dock workers or seafarers; or that they are registered with NIMASA as such. Furthermore, that there was no iota of evidence showing that they were engaged in the performance of dock work and not oil and gas industry work while on board the said FPSO from the same affidavit of facts of the defendant. The claimant went on to contend that the same cannot, however, be said of its affidavit of facts, where in especially paragraphs 3(iii), 8 and 9 of the said claimant’s affidavit of facts, it was deposed that the said workers of GAC Manning Services on board the FPSO Sendje Berge at Okwori Oil Field Terminal are there doing their work as workers working in oil and gas industry installations. The argument of the claimant that the defendant did not depose to facts showing that FPSO Sendje Berge is a maritime vessel appears conflicting since in paragraph 2.1 of its written address, the claimant itself had argued that FSPO Sendje Berge is alternatively a vessel. In paragraph 3(vii) of its affidavit of facts, the claimant had described FSPO Sendje Berge as having been converted as a vessel sailing to a stationary FSPO vessel used for oil processing and storage activities. To show that FSPO Sendje Berge is an oil installation, the claimant then attached pictures of the FSPO Sendje Berge as Exhibits NUP A, NUP B, NUP B1, NUP B2, NUP B3 and NUP B4; and referred the Court to web address www.rigzone.com/news/oil_gas. The claimant did not indicate the date of its access to this website address because I tried accessing this website but was unsuccessful as the link could not be connected. The report from the internet site is that the item requested could not be found. In paragraph 5 of its affidavit of facts, the defendant asserted that GAC Manning Services (Nig.) Ltd is a subsidiary of GAC Shipping (Nig.) Ltd registered with NIMASA as a labour recruitment and manning agent to supply qualified Nigerian crew to vessels located and operating in the marine industry in Nigeria. The defendant then attached Exhibits MWUN 1 and MWUN 2, copies of the profile of GAC Manning Services (Nig.) Ltd and GAC Shipping (Nig.) Ltd as displayed on their websites. I must here reiterate that the issue before the Court is not the unionization of all staff of GAC Manning Services (Nig.) Ltd but only those of its staff that are on board FSPO Sendje Berge. In referring this Court to website addresses, on 3rd March 2015, I decided to google “FSPO Sendje Berge” on the net. The result of my search confirmed Exhibit NUP A. In my google search, the images of FSPO Sendje Berge that I saw were images of a full-fledge ship/vessel in the middle of water. What I could gather from the search and the photographs frontloaded by the parties is that FSPO Sendje Berge is a shipping vessel; and has oil processing capacity 50,000 bbl/d, gas compression capacity of 55 mmsfd and storage capacity of 2,000,000 bbl. In other words, FSPO Sendje Berge is a vessel but engaged in the oil and gas business. With this scenario, the question remains which between NUPENG and MWUN can unionise the workers of GAC Manning Services (Nig.) Ltd on board FSPO Sendje Berge. In determining this question it may be useful to know the exact workers talked of in terms of their names, status and position, and type of work they do on board FSPO Sendje Berge. However, beyond the generalized averments in the affidavits of facts of the parties, the parties left these issues to conjecture. For instance, the claimant had argued that in especially paragraphs 3(iii), 8 and 9 of its affidavit of facts, it deposed that the said workers of GAC Manning Services on board the FPSO Sendje Berge at Okwori Oil Field Terminal are there doing their work as workers working in oil and gas industry installations. This is too broad a generalization to state with any categorical assertion the exact status and work that the workers do once it is noted that NUPENG v. MWUN [2012] 28 NLLR (Pt. 80) 309 held that “the type of work done and the industry is the yardstick for determining jurisdictional scope”. Exhibit NUP D consists of 25 letters of disengagement from union supposedly signed as individual letters by workers who are disengaging from either NMNOU or MWUN. The thing about the letters in exhibit NUP D is that all the signatories described themselves as “Rating Sendje Berge Crew” or “Officer Sendje Berge Crew”. And in Exhibits NUP E and NUP F (both emails dealing with deduction of union dues) the workers in question were described as “crew”. All these phrases used here are phrases applicable only to workers on board a ship and so applicable to the maritime sector. The phrase “crew” is also used in the aviation sector but that is not the sector in issue in the instant case. Since the phrases describe that status, position and works of the workers in question, it can only lead to one conclusion, that they are workers in the maritime sector; and I so find and hold. It is in this vein that in The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor unreported Suit No. NIC/ABJ/104/2011 the judgment of which was delivered on February 8, 2013, this Court held as follows – The question that we must, therefore, and presently, resolve is whether a company that provides marine services to especially the oil and gas sector is a maritime company (in which event its workers are to be unionised by the claimants) or it is an oil and gas company (in which case its workers are to be unionised by the defendants). The jurisdictional scope of the Maritime Workers Union of Nigeria relates to “all workers in the Nigerian Ports Authority and all persons employed in the manning of ocean going, inland waterways, coastal and harbour vessels or crafts afloat. All dock-workers including workers engaged by shipping, clearing and forwarding agencies, but excluding managerial, professional and administrative staff”. Our reading of this jurisdictional scope is that the remit of the Maritime Workers Union of Nigeria seeks to cover all workers within the maritime sector. Since a cardinal guiding principle in the restructuring of the trade unions relates to the need for compatibility of the trade unions in terms of product, skill, services and conditions of employment, we are of the opinion that the workers in Lamnalco Nigeria Limited are more compatible with the claimants than with the defendants. They are workers in the maritime sector by training and work though their services are essentially offered to the oil and gas sector; and we so hold. The workers of Lamnalco Nigeria Limited cannot by resolution in the manner they did as per Exhibit A frontloaded by the defendants simply arrogate to themselves the choice of which union to join without regard to the jurisdictional scope of the unions as stipulated under the Third Schedule to the Trade Unions Act. As pointed out by this Court in PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 345 – The dire need to streamline trade unions as a result of proliferation and a chaotic labour regime led to the restructuring of trade unions beginning with the restructuring exercise as contained in the legal notice No. 92 Re-structuring of Trade Unions, Official Gazette of the Federal Republic of Nigeria No. 6 of 8th February 1978. This culminated in the restructuring exercise under Decrees 4 and 26 of 1996 where trade unions were restructured into named unions listed out and their respective jurisdictional scope provided for, all in the Third Schedule Parts A – C to the Trade Unions Act, as amended. See Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755, a case that was decided during the 1979 – 1983 democratic dispensation. The 2005 Trade Unions (Amendment) Act did not repeal, amend or substitute any of the provisions of the Third Schedule Parts A, B and C of the Trade Unions Act Cap. T14 LFN 2004. It was left intact. On the issue of voluntarism, the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act Cap. T14 LFN 2004. Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU v. ASCSN [2004] 1 NLLR (Pt. 3) 429 and Osawe v. Registrar of Trade Unions, supra. Even the fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights. We, therefore, hold that the jurisdictional scope as contained in the Third Schedule Parts A, B and C to the Trade Unions Act is still applicable to all the trade unions. The right to choose which union to belong to is a qualified right. In like manner, the workers of GAC Manning Services (Nig.) Ltd on board FSPO Sendje Berge as described in the various Exhibits frontloaded by the claimant are workers in the maritime industry and so if eligible can only be unionized by MWUN, and I so find and hold. A good deal was made by the claimant of Exhibit NUP I, the letter from Ministry of Petroleum Resources dated 3rd December 2013, signed by Goddy E. Onwughalu (Director, Human Resource) and addressed to the Managing Director, GAC Manning. This letter purports to communicate the decision of a 13-Man Committee set up by the Federal Government on Conflict Resolutions in the Oil & Gas Industry, which Committee “decided that GAC Manning and BW Offshore should allow workers on board Sendje Berge/Okwori Terminal to immediately unionise under PENGASSAN AND NUPENG as appropriate”. For one, membership of this 13-Man Committee is not disclosed; and the defendant in the instant case argued that it had no representation in this 13-man Committee. Secondly, unionization/jurisdictional scope is a question of law to be decided by the Court, it is not one to be donated by a Committee by whatever name or agreed upon by parties. Eligible junior workers belong to a union howsoever they feel about it subject only to their overriding right to opt out of the union individually and in writing. Exhibit NUP I, purportedly communicating which union the workers of GAC Manning Services (Nig.) Ltd on board FSPO Sendje Berge is accordingly null and void; and I so find and hold. On the whole, and for the reasons given, it is accordingly my finding and holding that it is the Maritime Workers Union of Nigeria (MWUN) that can unionize the employees of GAC Manning Services on board FPSO Sendje Berge. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD